Federal Court of Appeal - Doering v. Canada (Attorney General)

[1] This is an application for judicial review of two decisions of a Judge of the Tax Court of Canada rendered on December 4, 2001, reported as Doering v. Canada (Minister of National Revenue - M.N.R.), [2001] T.C.J. No. 888 (QL). The Tax Court Judge upheld the decision of the Minister of National Revenue that, during the period January 29, 1998 to February 7, 2000, Mr. Doering (the applicant) was engaged in a contract for services, not a contract of service, with Bulk Systems (Alberta) Ltd. (the payor). The consequence of that decision was that, during that period, the applicant did not have insurable employment within the meaning of s. 5(1)(a) of the Employment Insurance Act, S.C. 1996, c. 23 or pensionable employment within the meaning of paragraph 6(1)(a) of the Canada Pension Plan, R.S.C. 1985, c. C-8.

[2] The applicant gave evidence in the Tax Court that the payor would not permit him to obtain his own insurance for his truck, as the contract provided. He also gave evidence that in the particular circumstances, this resulted in his being unable to use his truck as an owner. Despite that evidence, the Tax Court Judge found that the payor did not exercise such a degree of control that would cause the relationship to be one of employment.

[3] Counsel for the respondent defends the Tax Court Judge's conclusion on this point on the basis that the applicant did not give evidence as to whether or how he attempted to enforce the insurance clause under the contract.

[4] However, the applicant was not cross examined on this point because the Tax Court Judge stopped the proceedings at the conclusion of the applicant's direct evidence.

[5] The issue as to whether the applicant could use his truck as an owner bears significant weight in the circumstances of this case and may well have brought the Tax Court Judge to a different conclusion if the evidence had not been truncated.

[6] The applications will therefore be allowed with costs in favour of the applicant, and the matters remitted to a different Tax Court Judge.

"M. NOËL"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-57-02 & A-58-02

STYLE OF CAUSE: CHARLES W. DOERING v. THE QUEEN

PLACE OF HEARING: Calgary, AB

DATE OF HEARING: November 5, 2002

REASONS FOR JUDGMENT

Delivered from the Bench: NOËL, J.A.

DATED: November 5, 2002

APPEARANCES:

Mr. Charles W. Doering, Litigant in Person FOR THE APPLICANT

Calgary, AB

Ms. Gwen Mah FOR THE RESPONDENT

Edmonton, AB

SOLICITORS OF RECORD:

Mr. Charles W. Doering, Litigant in Person FOR THE APPLICANT

Mr. Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada